Fact-check prosecution dangerous to speech

Published
12:00 am CDT, Wednesday, June 18, 2014

In more than a dozen states it can be a criminal offense to make a false statement about a candidate for public office. But such laws are unnecessary, and open to abuse. This week, the Supreme Court handed down a unanimous decision that could be the first step in doing away with them.

The justices ruled in favor of the Susan B. Anthony List, an antiabortion group that wants to challenge an Ohio law making it a crime to utter a false statement “concerning the voting record of a candidate or public official.” The issue before the court was whether the group had suffered a sufficient injury to have standing to sue.

During the 2010 election campaign, the Susan B. Anthony List planned to post an ad on billboards accusing then-Rep. Steven Driehaus, D-Ohio, of voting “for taxpayer-funded abortion” when he supported the Affordable Care Act. After plans for the ad were reported in the news, Driehaus filed a complaint with the Ohio Elections Commission, a panel of which determined that there was “probable cause” that the ad was false.

The ad never went up because the owner of the billboard space feared legal reprisals. Driehaus withdrew his complaint after losing the election and before final commission action or referral to prosecutors. But the

Susan B. Anthony List persisted in challenging the constitutionality of the law. A federal appeals court ruled that the suit couldn’t proceed because the issues were now moot and the plaintiffs no longer faced an “imminent threat” of prosecution.

The Supreme Court’s decision to overturn that ruling is welcome because citizens who believe their freedom of speech is being chilled by an unconstitutional law shouldn’t have to wait until they are prosecuted to challenge the law. Furthermore, the decision increases the likelihood that the court will eventually rule on whether laws like Ohio’s violate the First Amendment.

We think they do. No one condones lying about (or by) politicians. But the price of criminalizing false statements in political campaigns is that candidates and citizens alike may be deterred from engaging in the “uninhibited, robust and wide-open” debate that the court has said is protected by the Constitution. And often it will be a matter of debate whether a characterization of a candidate’s record is false or merely misleading.

In 2012, the justices struck down a federal law making it a crime for a person to falsely claim to have received military honors. Justice Anthony M. Kennedy wrote: “The remedy for speech that is false is speech that is true.” That observation is especially applicable to the cut-and-thrust of a political campaign. The veracity of statements about a candidate’s record is best policed by his opponents and by voters, not by prosecutors.